In a ruling that affects street rallies and protests, the 7th U.S. Circuit Court of Appeals struck down the part of a city ordinance that lets police arrest people who don't follow orders to disperse when at least three people are likely to cause "serious inconvenience, annoyance or alarm."
But a key part of the ordinance remains intact — and wasn't even challenged — to let the city criminalize somebody's refusal to leave a scene when three or more people could cause "substantial harm."
The court issued the opinion Monday, when thousands of Chicago Public Schools teachers started a strike that's bringing big crowds to streets and sidewalks.
The ruling "definitely has a practical effect on protests and demonstrations in the city to the extent that people can engage in those protests and demonstrations and know they cannot be arrested until there are people nearby whose conduct is likely to cause substantial harm," said Elizabeth C. Wang of Loevy & Loevy, who represents the plaintiff in the case.
In 2008, Buddy Bell joined a sidewalk rally on Dearborn Street and Jackson Boulevard to encourage George W. Bush to end the war in Iraq. The former president was attending a downtown luncheon.
After police arrested a protester for walking into the street, Bell approached the officers and entered the street. Police ordered Bell and two others to return to the sidewalk.
When Bell and the two protesters refused and chanted, "Hell no, we won't go," police arrested all three for disorderly conduct pursuant to Chicago Municipal Code 8-4-010(d).
The ordinance, referred to as "Subsection D," criminalizes a person's knowing failure to obey a police dispersal order when three or more people are committing acts of disorderly conduct that are "likely to cause substantial harm or serious inconvenience, annoyance or alarm."
In Cook County Circuit Court, Bell won an acquittal on the charge of violating Subsection D.
Next, Bell filed a federal lawsuit against police officers and the city to allege that police violated his First Amendment right to free speech. Bell also contended that police violated his 14th Amendment right to due process on the basis that the ordinance is vague and ordinary citizens wouldn't know their actions are prohibited.
U.S. District Judge John W. Darrah dismissed Bell's suit, ruling that Bell lacked standing to apply for injunctive relief because he didn't demonstrate a likelihood of future or repeat injury. Bell appealed.
The federal appeals court reversed Darrah's ruling in a 35-page opinion by Judge Joel M. Flaum.
"While recognizing and respecting the [c]ity's need to protect its citizens and its streets, we conclude that the ordinance is overly broad," Flaum wrote.
Flaum ruled that when police must disperse a crowd that threatens "substantial harm," police don't infringe on protected free speech.
"We cannot say the same, however, for authorizing dispersal on the basis of 'serious inconvenience, annoyance or alarm,'" Flaum wrote.
Addressing "annoyance," Flaum wrote that such behavior is no reason to restrict protected speech.
"We cannot conceive of an annoying behavior, however annoying it may be, that could constitutionally draw as a remedy dispersing others engaged in protected speech," Flaum wrote.
Wang, Bell's attorney, will ask the district court to stop the city from enforcing the part of the ordinance that's now deemed unconstitutional.
Regarding the timing of the court ruling and the teacher strike, Wang said she "can never really say when the court rules and why."
Assistant Corporation Counsel Christopher S. Norborg represented the city.
Roderick Drew, the city Law Department spokesman, said his office is "disappointed with the decision and will be reviewing all available options."
Judges Ilana Diamond Rovner and Ann Claire Williams joined the opinion, which is Buddy Bell v. Chicago Police Deputy Chief James Keating, et al. No. 11-2408.